Why the Supreme Court Isn’t a Dog’s Best Friend

At least when it comes to drug sniffing dogs that police want to use without a warrant.

Thomas, a member of the U.S. Customs and Border Protection K-9 team, can detect banned foods and pets. Today, the Supreme Court heard argument about turning police dogs loose to sniff people’s homes and trucks.

Photograph by Paul J. Richards/AFP/Getty Images.

Confession: Stranded at home by Sandy, I couldn’t make it to the Supreme Court for argument this morning. So I’m going by thetranscripts to divine how the justices feel about turning police dogs loose to sniff people’s homes and trucks. (Turning them loose constitutionally speaking, I mean—literally speaking, the dogs are on leashes.) Dear Dogs: I’m sorry to report that praise was not raining down on you today. Some justices wonder how well you are trained and most of them do not want you on the front porch.

Gregory Garre represented the state of Florida, which wants dogs to be able to sniff away without police handlers bothering to get a warrant first. (That’s what’s at stake here—whether the cops need warrants, not whether they can use dogs.) Garre played his best cards first: The three earlier cases “in which this Court has held that a dog sniff is not a search” and “has emphasized that a drug detection dog reveals only the presence of contraband, and that no one has a legitimate expectation of privacy in that.” But Justice Anthony Kennedy barked. “I mean, that just can’t be a proposition that we can accept across the board,” he said. Oh dear—maybe those three previous cases aren’t so valuable after all.

Garre tried to rally, but Justice Ruth Bader Ginsburg hit him with the prospect of police bringing dogs to sniff door to door throughout a “neighborhood that’s known to be a drug dealing neighborhood.” This is not a hypothetical: It’s the plan of police in Virginia and North Dakota to patrolpublic housing. Garre says, yes, the police can use dogs to sweep a neighborhood, just like they “could go door to door and knock on the doors and hope that they will find out evidence of wrongdoing that way.”

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Now it’s Justice Antonin Scalia’s turn to nip. To him it seems “crucial” that Franky, the dog in one of today’s two cases, was led onto the porch of defendant Joelis Jardines, where he then sat down by the front door to signal—correctly—the smell of marijuana inside. Scalia says Franky’s handler “went onto the portion of the house as to which there is privacy” and “used a means of discerning what was in the house that should not have been available.” Garre counters that cops and their dogs are like salesmen, Girl Scouts selling cookies, or (Happy Halloween!) trick-or-treaters. They have “implied consent” to come up to your door. Ginsburg isn’t going for it. Neither is Justice Sonia Sotomayor. When Garre tries to stick with his Franky-salesman analogy, she says, “So we’re going to treat it like a human being now? You’re invited to knock on my door because you’re a dog?”

When Scalia steps back in, it is not to save Garre. He suggests that a sniffing dog is like a pair of binoculars—a tool that allows the police to uncover something they otherwise wouldn’t. Scalia decidedly does not think the cops can look in your windows with binoculars without a search warrant. Even Garre concedes this, though he thinks it’s OK for the cops to look in the window without binoculars (or a warrant). This is where he loses Justice Stephen Breyer. “Now, why is that unconstitutional?” he asks about the officer who is peering into your windows from the front step. “Because it’s very unusual that someone would do that, and the homeowner would resent it.” Just as the homeowner would resent a big dog like Franky sitting on his porch for up to 15 minutes, Breyer suggests—the length of time he thinks Jardines had to put up with Franky. Now it is really not looking good for the dogs: No one speaks up for letting them onto the porch at all, much less sniffing at the door.

Integral to Scalia's view on this point is the word curtilage. SAT alert: It means the area surrounding a house that’s used for daily domestic activities. The problem for Franky, and for his handler, is that they intruded onto Jardines’ curtilage. “He’s going there to search,” Scalia says of the officer, “and he shouldn’t be on the curtilage to search.” In case there’s any question about whether Scalia will come down against Florida and warrantless dog sniffing of houses, Justice Elena Kagan quotes his decision in Kyllo v. United States. That’s the 2001 ruling in which the court said that the police need a search warrant to use thermal-imaging technology to detect marijuana growing inside a home. Kagan wants to know how Franky differs from a thermal-imaging device. Garre answers, “Franky’s nose is not technology.” OK, Kagan continues, what “if we invented some kind of little machine called a, you know, smell-o-matic.” Garre clings to his claim that Franky is all-natural. “So your basic distinction,” Kagan presses, is “that we should not understand Franky as a kind of a sense-enhancing law enforcement technology, but we should think of him just like a guy?” Garre says yes, but he gets no help from the court. “He’s not augmenting what a human being can do,” Sotomayor says of Franky. “He’s substituting what a human being can do.”

Nicole A. Saharsky of the solicitor general’s office gives Florida an assist from the Obama administration. She says Jardines conceded in the lower court “there was no reasonable expectation of privacy on the porch.” In fact, Franky and his handler are apparently just like trick-or-treaters. Ginsburg worries again about police taking dogs door-to-door at will, and Saharsky counters “there are restraints on police resources. There’s the potential for community hostility.” She sees no role for the court to play here—grumpy neighbors will take care of themselves. Breyer and Ginsburg are not mollified. Roberts uses his questions to draw out the point that Franky didn’t actually sit down and sniff for 15 minutes—the whole operation of coming up to the door and sniffing and then going back to the police car maybe took 10 minutes. Is the idea that the court’s decision should turn on five minutes one way or the other?

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Howard K. Blumberg, who is arguing for Jardines and against Franky, does his best to keep the justices focused on the sacrosanct nature of privacy in the home. Scalia goes Rear Window on Blumberg, conjuring up a murderer who leaves the body inside his house and forgets to pull down the blinds. “The policeman at a great distance has a telescope and he looks through the blinds and he sees the corpse,” he says. “Can the police go into the home?” Blumberg says yes, because the body was knowingly exposed, and Scalia says no, the murderer was just careless. From here they move to the mothballs that Joelis Jardines left outside his door, ostensibly to mask the smell of the marijuana he was growing inside. Roberts picks up the thread: “It seems to me that you may have an expectation of privacy in the marijuana plants, but you don’t have an expectation of privacy in the odor, because you’re emitting it out, out into the world.” Roberts, unlike Scalia, doesn’t seem to care about curtilage. Neither does Justice Samuel Alito. “You know, we’ve had hundreds of trespass cases in this country and in England,” he says. “Do you have a single case holding that it is a trespass for a person with a dog to walk up to the front door of a house?”

Blumberg doesn’t have such a case. But he does refute Saharsky’s assertion that Jardines conceded that the dog was sitting lawfully at his front door. He says that the cops can come up to the door, and they can take a sniff with their own noses. But a dog and its superior nose cannot.

After more wrangling, Gregory Garre comes back to the podium for the second case of the morning. This time, the Florida police deployed a dog named Aldo to sniff the truck of Clayton Harris after he was pulled over for driving with an expired license plate and started shaking and breathing fast. Harris challenged Aldo’s detection of methamphetamine residue on his truck’s door handle and won at the Florida Supreme Court. “Are you for or against the dog this time?” Scalia asks Garre, who assures him that he is still on Team Dog. There’s no curtilage and no privacy of the home at issue for Harris. Instead, the problem for Garre is that Aldo’s certification expired 16 months before his handler sicced him and his nose on Harris. If dogs don’t have to carry proper papers to do detection work, can’t any old mutt show up for the job?

Garre says no, “the most important thing is successful completion of proficiency testing.” Aldo passed once upon a time and that’s good enough. Sotomayor and Ginsburg don’t think so, but this time Scalia tries to bail Garre out. “You know, I suppose that if the reasonableness of a search depended upon some evidence given by a medical doctor, the Court would not go back and examine how well that doctor was trained at Harvard Medical School, and, you know, what classes he took and so forth,” he wagers.

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Actually, that is exactly what Ginsburg wants to examine. She asks how the state can establish that a dog is reliable in detecting drugs without showing that it, together with its handler, had current narcotics-detection certification. Sotomayor brings up research that makes Aldo’s reliability seem downright suspect: “The studies presented to the Court, particularly the Australian one, where, under a controlled setting, one dog alerted correctly only 12 percent of the time.” What about the dogs that frequently blow it and what about dogs that get old? Garre basically says that if the police keep the dogs in service, courts should defer to their judgment. In general, the reason dogs are being used “is because the people who work with them know that they are reliable.”

Hmmm, sounds suspect. Kagan asks about cueing—the ways in which handlers tip off dogs about their own suspicions. She’s not suggesting the police do this on purpose, just wondering if “there are different ways of training that make that less or more of a problem.” Garre says that a defense lawyer can ask about cueing at trial, and, mercifully, he gets to sit down.

For the Obama administration, Joseph R. Palmore emphasizes that Aldo “performed perfectly in a controlled setting” two days before sniffing the meth residue on the door handle of Harris’ truck. The Florida Supreme Court was wrong to demand any more evidence of the dog’s reliability, Palmore argues. He says that in 30 or 40 years of rulings on dog sniffing, no other appeals courts “have imposed these kinds of requirements on law enforcement.”

Palmore also mentions that “there are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy.” This has nothing to do with sniffing for drugs, I hope. But it does remind us who our best friends are. I bet Aldo and Franky will still work hard, even if the Supreme Court makes their handlers get a warrant.